And for those who want to purchase the full length recording, and reasoning behind the conclusions, all you need to do is to write to me at belinda@careandhealthlaw.com for a coupon code which will discount the price of a recording of the event (opens 6 times) to £50 + VAT.

Purchasing the recording keeps the materials private, and protected, given the effort it’s taken me to get good at this topic, and the absence of any government funding! It also enables you to pause the recording and see the materials.

All proceeds from this particular webinar are going to CASCAIDr, my new venture, launching soon, as a free legal advice charity, to try to stop the rot in legal literacy! 🙂

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues.
She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point!
She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together!
She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “

The conclusions from the Warehousing and Cost-Capping webinar

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Belinda’s account outlines very helpfully how the prevailing eligibility process works. It illustrates well its complete irrationality. Whilst it’s widely believed the process is a requirement of the law, this is not the case. The eligibility process is a policy choice, albeit one the law permits. A different policy choice, another one that the law will permit, might enable us to find the ‘holy grail’ Belinda mentions.

Eligibility policies serve the purpose of controlling spend by restricting what the council considers ‘need’ in a way that the council believes will ensure they can afford. They create a circular definition of ‘need’ whereby a need is a need only if there is resource to meet it. This is plainly irrational, as Lord Lloyd for the minority in the original Barry judgement pointed out in 1997 saying that if a child needs a pair of shoes, they need them whether or not it can be afforded. Lady Hale in her minority position in a Supreme Court judgement reiterated this view in 2012 saying she regretted the more rational view had not prevailed.

A consequence is that ‘needs’ not deemed eligible are reduced to mere wishes of the service user. They are stripped of their status of being needs.

Belinda says ‘it’s always been possible for a public body to decide that where two places CAN meet needs, there is only one practicable place to meet them, and choosing the cheaper of the two’. In the case in question, it would cost £0.5M a year for the person to be supported at home and substantially less in residential care. But it is not the case that the two places would meet his needs. Support at home is likely to enable him to have a substantially better level of well-being as needs in relation to such as self-worth, independence, self fulfilment etc would be met, but would not be met in an institutional setting. The institutional setting will, however, be able to meet a restricted range of needs – to be fed, watered etc. But life would be miserable. How can the concepts of self worth, self fulfilment and happiness be stripped of their status as human needs?

But it is not only irrational – and insulting – to reduce needs for wider well being to being only a ‘wish’. It is surely now also unlawful given the Care Act’s nine areas of well-being. The Act requires the assessment to address all relevant areas of well-being.

Under eligibility policies, councils have no choice but to behave in this irrational and offensive way. They are trapped between levels of resourcing below that required to meet needs for well-being, and a policy requirement that all assessed needs must be met (whether informally or by the council). If they acknowledged the full breadth of needs for well-being as ‘need’ they would become ‘eligible’ and therefore land themselves with unsustainable costs.

But the Care Act has made it clear that it does not have to be this way (it actually never did, eligibility systems were always only a policy option, albeit dressed up as a legal requirement). Under the Act assessed needs fall into two groups – those that are a duty to meet and those a council has discretion to meet (power). This has the potential to radically change the landscape. It is for the council to decide where the threshold lies between duty and power to meet need. The range of needs the residential option can meet would be those that are a duty to meet. The range of needs that add quality of life can be a power to meet.

This won’t change the outcome in the short term, of course. The residential option will still be the one offered. What is different is the honesty and transparency of the decision making process. This can have profound implications. The first thing is respect for the service user and for their views. The second is it will enable the service user and council to have an honest relationship – the service user will be told that the real reason why he has not been offered the home support option. And this changes the political dynamics. Belinda says, quite correctly, that under the current eligibility regime, if the service user doesn’t like the decision ‘they need to lobby Parliament to change the law’. This, of course, is completely unrealistic and no doubt said tongue in cheek. What the honest approach will do is make it plain what is perfectly obvious anyway, which is that the level of needs met is determined by the level of resource that is available. So the service user should be sent to lobby their political leaders for a change in funding levels. That is a much more realistic objective. Nobody can know the outcome of such a changed narrative, but is surely the right narrative to develop. It is also much less expensive than judicial challenges.

A system of resource allocation is needed that is lawful but accepts that it is the political system, not the judicial system, that determines the level of resourcing of social care and therefore the level of needs met. The current eligibility based system denies this. It is quite wrong to say that ‘warehousing’ meets a service user’s needs but in a cheaper way. It meets only some of their needs. But it plays perfectly into the hands of political leaders who can hide behind a judicial process which is prepared to label the needs that make life worth living merely service user’s ‘wishes’ for which, therefore, the state has no responsibility.

I believe in free speech and am a generous soul so am happy to give Colin Slasberg the space to air his views. But I do not agree with their correctness in legal terms. My view is that if the definition of deserving need were to be reduced to the political arena, he who shouts loudest would always get the most. I believe that law – public law – for all its weaknesses – is the only answer to the fact that welfare provision is not the same as social security and HAS to depend on a professional’s view of need, not the member of the public. It is the fact that people aren’t aware of their rights, and that even when they are, they can’t do much about them, that has driven me to conceive of a free legal advice charity to help such people enforce their rights, such as they exist. I am interested in fidelity to the legal framework, as it has been passed by a Parliamentary process, and contributed to the framing of the Care Act. In my view it is simply not helpful or relevant to speak of what might have been, or should have been legislated for. Even if Colin were right, in legal terms, when he suggests that the duty to promote well-being somehow turns people’s personal and widely varying aspirations into outcomes that MUST be financed by the rest of us through taxes, instead of merely informing the discretionary view subject to public law, there would STILL have to be a professional’s decision as to how much of anything was ever defensibly enough. The legal test of that concept at the moment is whether no other body in the same boat would consider a similar decision to be rational and lawful and the judge decides whether the position on the offer is defensible, taking credible professional consensus into account. I agree that the power to meet need in a better than the cheapest way is all important, (the full webinar includes a reminder of that power for all) but the legal fact is that a lawful answer to the suggestion would still be ‘No, after due consideration, we still think we haven’t enough money.’